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Super Smash Bros.

Episode 44: Cease and Desist ft. Connor Richards

Imad Khan December 10, 2020 23

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Following a cease and desist letter sent by Nintendo, The Big House Online was forced to cancel both its Melee and Ultimate tournaments. Nintendo alleges illegal copies and custom code were being used to play Melee, violating its intellectual property. Attorney and Esports Bar Association member Connor Richards joins the show to break it all down from a legal perspective.

SPEAKERS: Imad Khan, Connor Richards

Imad Khan  00:02

What’s up everybody? This is FTW with Imad Khan. I’m your host Imad Khan. And joining me today on the Cease and Desist edition is Esports Bar Association member and attorney Conor Richards.

Connor Richards  00:11

Hey, thanks for having me on.

Imad Khan  00:12

On today’s show, we’ll be focusing on Nintendo’s decision to cancel the upcoming Big House Online Smash Bros Melee and Ultimate tournaments. Because Melee is a game from 2001. It never had any big 10 online functionality. With the use of emulators players have been able to play each other online using netplay. Earlier this year, a software engineer who goes by the name Fizzy created Project Slippi using rollback net code it gives an almost in person like experience when playing Melee online. Given safety restrictions due to the Coronavirus, the release could not have been more timely. The fighting games community has suffered during this pandemic, as it’s an esports scene that needs to be played locally. Slippi was seen as a reprieve for the Melee scene and ability to continue competing safely from home. Last week, The Big House, a storied tournament series, announced it received a cease and desist letter from Nintendo. In it it stated, “we were informed we do not have permission to host or broadcast the event primarily due to the usage of Slippi. Sadly, all our competitions are affected.” And in a statement to Polygon Nintendo stated, “the upcoming big house tournament announced plans to host an online tournament for Super Smash Brothers Melee that required use of illegally copied versions of the game in conjunction with a mod called Slippi during their online event. Nintendo therefore contacted the tournament organizers to ask them to stop. They refused, leaving Nintendo no choice but to step in to protect its intellectual property and brands. Nintendo cannot condone or allow piracy of its intellectual property.” This has prompted outcry and condemnation from the Melee and online gaming communities with multiple personalities calling Nintendo’s decision needlessly harsh. It also started the Free Melee hashtag on Twitter. Fizzi, the creator project Slippi also put out a statement. In it he stated that the mod. “has enabled competing and watching top level competition without requiring risky gatherings. I’m disappointed that Nintendo is restricting our ability to power through these hard times.” So Connor, Nintendo is claiming that the use of ROMs and netcode are the reason for the cease and desist. Let’s break this down one at a time. is using ROMs illegal and if so how can the community get around this hurdle?

Connor Richards  02:04

Well, first, you have to draw a distinction on the kind of ROM that you’re talking about. So if you were to just Google and Nintendo, like Super Smash Brothers Melee ROM, find some random site and download a lot that site that is pretty clearly illegal. Holding a copyright basically gives you exclusive license to the production of duplicates of a game and selling the game for commercial profit. It becomes a little bit fuzzier when you’re talking about the ability for you to go out and commercially purchase the game in a completely legal sale, come back to your own computer and then just back it up or archive it yourself. So that way, you have a copy of a game that you’ve commercially purchased. Some legal scholars draw a distinction there and say that that is legal. That said, it has been Nintendo’s position, for as long back as I was able to find, that that has always been considered by them to be illegal. Even if you were to open the instruction booklet in some old copy of Super Smash Brothers Melee on one of the last pages there. It says that any duplication of the game is illegal, including archival or backup copies, and these should not be done. So it’s Nintendo’s position that these are strictly speaking illegal.

Imad Khan  03:07

Right. Interesting. But that ultimately doesn’t matter. All that matters is how it holds up in court. So have courts been able to deliberate on the use of backing up and archiving yet?

Connor Richards  03:17

Backing up and archiving in a lot of situations has determined to be legal, but it hasn’t — It’s actually an open question whether that’s allowed for games or not. The way that these terms of service and end user license agreements are written, sometimes they specifically exclude it. So other times they don’t speak to it. And courts haven’t really been able to read whether that’s a protected, right.

Imad Khan  03:35

Let’s say the big house had the money and where to take this to court with Nintendo.I mean, would they try to cite precedent with, you know, using movies or music for archival purposes as their grounds for justification?

Connor Richards  03:48

They probably would, in most situations, I mean, archiving a movie or a book or something like that you have been allowed to do I mean, functionally, that’s how like a library works, for example, right? I mean, they purchased a book, which is a copyrighted material, but because they purchased it in a commercially legal situation, something called the first sale doctrine, it means that you’re allowed to sale or lend that or share it without having to get permission or pay fees. The problem is you’re talking about digital rights here. And that leads to an analysis about whether or not you’re chopping into Nintendo’s future market share if they decide to port the game or something like that. So it’s a little bit of an open question. But you’re right, that’s probably the kind of stuff that they would cite. And they would try to compare it to those those kind of things.

Imad Khan  04:29

What you’re saying is that, let’s say the big house, were trying to keep everything aboveboard. First thing that they would have to do is get all of its players to use legally purchased copies of the game and archive that at the very least before any lawyers are involved in trying to litigate whether it truly is legal or not, correct?

Connor Richards  04:46

That’s the first step that you would need. The largest issue though that kind of hangs over all of this is copyright holders also have the ability to control publication and streaming of of different forms of media. So at any given point, basically for any reasons, Nintendo could step in and say you can’t broadcast Melee. And that doesn’t reach the question of whether or not a legal copy of Melee or not, they can just not want you to.

Imad Khan  05:07

The courts have made a distinction in terms — or they’ve yet to make a distinction in terms of streaming content, right? Because, for example, because movies and music are these kind of ever present pieces that don’t change for somebody to stream, it means that the person is getting the same experience viewing it as if they had rented a copy from Redbox or bought a copy from BestBuy or streaming it from Netflix. But gaming is a little different have courts really deliberated on, if game streaming is the same as you know, watching an illegally streamed movie or piece of music?

Connor Richards  05:38

They haven’t that’s again, one of these open questions and a lot of this that you that you find trying to dive into this this area of laws that a lot of it is unsettled. Most of the legal scholars that I’ve talked to speculate that game companies would have a little bit more control over this, because usually their license agreements and stuff like that, that I mentioned earlier, are a little bit stricter. And then also, the experience changes a little bit, because you’re no longer actually playing the game. You’re just watching someone else play it. So you have some distinctions like that, that courts may or may not find persuasive.

Imad Khan  06:08

Assuming if The Big House were to, you know, take this to court, they’re based in Detroit, how would that lawsuit go about in terms of the American court system?

Connor Richards  06:16

venue choice, and jurisdiction is kind of a complicated issue? I’m not sure we’re no Nintendo of America is that actually operates out of

Imad Khan  06:26

They’re in Seattle.

Connor Richards  06:28

Gotcha. So if, if they’re the one bringing the lawsuit, I mean, they could try to select Seattle as a forum, sometimes their license agreements do specify a specific forum that if they were to bring a case that would be held held in. You also have issues with like arbitration clauses and that kind of stuff. I mean, like you said, you’re talking about a game that was released in 2001. And I mean, the terms of service or whatever, I like the last couple pages of this little instruction booklet. So you’re not, you’re not working with a whole lot of meat there. I mean, if they’re bringing the lawsuit, they would probably want to try to select a forum that’s going to be freindliest to them, whether that’s Seattle or Delaware, or something like that.

Imad Khan  07:03

Based on I guess, my preconceived notions because Seattle is such a tech heavy area and is generally seen as liberal, I feel that maybe Nintendo would not want to do it in Seattle, because there could be sympathy towards the consumer, right?

Connor Richards  07:16

Hard to say, I’m not unfortunately an expert too much on Seattle IP laws. I know that generally tech companies like California, because their proximity to all those, like giant tech companies makes the courts sometimes a little bit more favorable to trying to create that that positive tech innovation culture. But yeah, I’m not sure exactly what the best forum would be for them to try to succeed in the lawsuit here.

Imad Khan  07:39

I feel that the big house would probably need a judge that was kind of, you know, with it, that kind of understood technology, and maybe the online space a bit more than maybe a judge who had no idea what any of this was.

Connor Richards  07:50

Yeah, I mean, I probably don’t have to tell you how how large of an issue it is to try to figure out like which judge to take this in front of. These are really cutting edge tech issues involving technology that like, even if you’re in the space, it’s hard to understand how some of this stuff works.

Imad Khan  08:05

Let’s also circle back to the use of netcode, right? And the idea of modifying modifying a piece of software that you allegedly own. Is that illegal?

Connor Richards  08:13

Probably not, at least in the case of Slippi. So I don’t know if you’ve ever used one of the game genies from way back. But there’s there’s case president that’s actually a little bit controlling here. And so basically, what you’re talking about is, you’re taking a piece of software, the game or the media form, and you’re altering it in a couple of ways, which is what Slippi does it it creates modifications that allows you to even match make at all, but also adds this net play component. And then it also adds little features like replays in a training mode that’s a little bit more robust. And basically, if you if you follow the courts logic and the Game Genie case, it’s a kind of a sliding scale test. So you’re talking about, first of all, did you mess with any of the game’s core assets? Is the core gameplay experience any different. For Slippi, it’s not any different? The whole idea is that you’re trying to simulate an offline experience. The other question is, did you touch on are the assets. Do any color? Do any characters look different to any stages look different? Again, the answer there is no, it’s the same character roster, you’re talking about the same stage list. You are purely adding features, which is this whole online thing. Because as you mentioned, I mean, you’re talking about a 2001 game on the Nintendo GameCube that’s played on CRT televisions. Like that, that can’t connect to the internet at all. So you’re not you’re not doing any online matchmaking. That’s purely a novel feature. So for those reasons, it’s more likely that Slippi would be considered to be not purely a derivative work, which means that it’s probably legal.

Imad Khan  09:43

I do want to circle with the idea of creating a parody game. And given that the there’s clear frustration with Nintendo in regards to how its treated the Smash community, and while it has been a bit more kind in the past few years, it still is very dogged and how it views its intellectual property and how it’s used online. I think there’s a pretty good free speech argument for a parody game to be made. But still, I feel that there might be some IP issues with the code itself. So how would a parody game need to change to where Nintendo has no legal qualms with it.

Connor Richards  10:16

It would have to contain none of your traditional Nintendo figureheads. So you’re not you’re you can’t be reusing any characters or stages or anything like that, that are referencing Nintendo games. The other core part of it is there, it’s been suggested that basically people just re-skin Melee and just, you know, call these characters something generic sounding, but still use Melee as your base game. That’s not enough, either, you can’t be reusing the code. So if basically your source material is directly attributable to Melee, then it’s probably a copyright violation, it needs to be novel. That doesn’t mean you can’t take mechanics. So for example, you may have heard of the game Rivals of Aether. That’s a game that took a lot of inspiration from Melee. It’s got a mechanic called wave-dashing and wave-landing in it that is that comes from Melee. And something called hit falling that’s similar to the way that L-canceling operates. And so you can have games like that, that are inspired and use a lot of the same kind of techniques and play the same way. But you can’t be reusing, like core assets. That’s the the main distinction there.

Imad Khan  11:18

Yeah, I feel that given the that Melee was coded for the Nintendo GameCube, a system that was designed in the 90s. If a parody version were created, it would probably have to be coded for modern computing language, which meaning like inherently would have to be different, right?

Connor Richards  11:34

Yeah, I think so. I mean, rivals, like I just mentioned is now on the Nintendo Switch, and it’s on Steam. But if you were to create, like you said, a parody game that’s closer to Melee, you’re right, it would need to be — I mean, people are gonna want it to be on newer, newer generations. So it’s gonna that would be a lot easier of a way to circumvent the reusing asset issue.

Imad Khan  11:54

If The Big House did want to go forward litigation. I mean, how expensive would that be?

Connor Richards  12:01

Very, very expensive. The the more economic option here is you may have you may recall, in 2013, melee was invited to participate in the Evolution fighting game tournament, which is like the biggest fighting game tournament every year. And similarly, this was kind of the first big tournament that Melee was involved in, and Nintendo sent a cease and desist to the the Evolution tournament organizers. Basically said, we don’t want you to play Melee. We don’t want our party game to be associated with a more hardcore competitive community. And the negative PR and the uproar and furor, as you put it a moment ago was so great as a response to that, that Nintendo back down and let them play it out. And I think if you’re looking for an economic solution, here, the negative PR is probably more effective than a lawsuit. Like you said, if you’re looking at lawsuit, I mean, you got to find specialists in this area that have you know, a real history of working in this really facts sensitive, really case, precedent sensitive area, you got to figure out where you want to do the lawsuit. Or you can just I mean, a cease and desist is the first step in Nintendo trying to shut them down. But it isn’t filing a lawsuit for copyright infringement. So you also could attempt to move forward and just dare them to sue you. But obviously, then, you know, they’re taking the first step. And so they’re getting to try to take certain actions regarding venue selection and stuff like that.

Imad Khan  13:23

But even then, if you were to put an estimate on the expense of that lawsuit, what would it be?

Connor Richards  13:26

You’d probably be talking about hundreds of 1000s, if not millions of dollars, just to just depending on how drawn out you wanted it to be. And especially if Nintendo decides to send, you know, multiple lawsuits your way for the different elements of what they see that this violation to be.

Imad Khan  13:43

I know there are multiple attorneys in the gaming space that are very generous with their time. Is this also just so complicated that even trying to pursue it pro bono, is that just so out to out of the question?

Connor Richards  13:53

I think so. Intellectual property is a really specialized area. So usually, if you operate in an intellectual property is almost all that you do, especially when you’re talking about copyright issues like this that are so complex. And so when you’re talking about someone who’s like a copyright specialist, who works in this space, that’s the kind of person that’s sought after enough that they probably don’t, like, just don’t have the availability for this kind of case pro bono. Especially when you’re taking on Nintendo who’s famously pretty litigious. And maybe that’s worth it to the point that the negative PR wouldn’t move the needle for them all that much, but it did in 2013. And during the EVO series, and they were just as successful as a company as they are now. So I have to believe it would move the needle some the other thing to look at here is that Nintendo has it has sort of courted the competitive community a little bit or embrace them more than they have historically. I mean, Nintendo now hosts Super Smash Brothers Ultimates tournament sometime. They’ve used a lot of tournaments as a mechanism to like sponsor them and then use them to advertise different games, to make sure that those sales are good. So I think the competitive community as a whole has enough leverage to move the needle if they push. The question is, you know, I mean, we’re in the middle of a pandemic that’s obviously devastated a lot of the world and there’s enough going on that it’s a little bit hard to focus strictly speaking on a on a Melee tournament. And so the question is whether or not I think people can apply the right pressure to get it done, but I think that they can.

Imad Khan  15:21

Nintendo is making tons of money during this pandemic, and could use to make a lot of money as a video game publisher. Animal Crossing, which released earlier this year has already outsold every PlayStation exclusive ever created. And sales for Super Smash Brothers Ultimate are also incredibly strong. I mean, you know, you mentioned bad PR as being a kind of motivating factor for Nintendo to maybe back down. But I mean, to what extent do you feel that would even do anything to them? Because I mean, what’s worse, some bad PR that you have temporarily, or ignoring that and continuing to make like the next Pokemon or Animal Crossing and making millions of dollars?

Connor Richards  15:55

It’s a hard calculus, because on the other side of it, you have to think what economic benefit does Nintendo get by trying to shut down a Super Smash Brothers Melee tournament? They’re not selling the game anymore. They’re not, as far as we know, they don’t have any plans to port it anywhere. So what economic opportunity they think is lost here? Or they just want a brand reputation as, hey, we fiercely protect our intellectual property, so don’t mess with us. And maybe that’s worth it to the point that the negative PR wouldn’t move the needle for them all that much. But it did in 2013. And during the EVO series, and they were just as successful as a company as they are now. So I have to believe it would move the needle some the other thing to look at here is that Nintendo has it has sort of courted the competitive community a little bit or embrace them more than they have historically. I mean, Nintendo now hosts Super Smash Brothers Ultiamte tournaments, sometimes, they’ve used a lot of tournaments as a mechanism to like, sponsor them, and then use them to advertise different games, to make sure that those sales are good. So I think the competitive community as a whole has enough leverage to move the needle if they push. The question is, you know, I mean, we’re in the middle of a COVID 19 pandemic, that’s obviously devastated a lot of the world and there’s enough going on that it’s a little bit hard to focus strictly speaking on a on a melee tournament. And so the question is whether or not I think people can apply the right pressure to get it done. But I think that they can.

Imad Khan  17:24

Was it a little surprising to you that Nintendo in their cease and desist not only blocked melaye, but ultimate as well?

Connor Richards  17:30

Yes. Just because I mean, these tournaments have been going on for Ultimate for, you know, they’re they’re happening 100 times a week, the entirety of the pandemic. And like you said, there are no assets here that are problematic as far as Ultimate being played. It’s possible, that Big House just decided to shut down ultimate and Nintendo as a response included that as part of the cease and desist for optics. But I don’t really see the point, I guess, and why you would shut down Ultimate as well?

Imad Khan  17:59

Do you think it was punishment or retaliatory?

Connor Richards  18:01

Potentially, I mean, like I said, they have pretty pretty absolute broadcast rights as far as most people are aware, so they could shut down Ultimate if they chose to, and it may just be retaliatory.

Imad Khan  18:11

Connor. Last question. If you were a legal adviser to the Melee community, what is the best course of action you would recommend?

Connor Richards  18:20

The best course of action here is, even as a legal adviser, the best course of action is not legal in nature. The best action here is to try to create a grassroots groundswell of support for Melee, such that it becomes such a negative PR move for Nintendo, and damages their economic opportunity here that they cave on it. The other part of it, it can be kind of a dual pitch. This is also an opportunity for Nintendo to build a whole lot of goodwill. I mean, they could sponsor Slippi, or these tournaments, they could embrace this community that clearly has shown so much love for Melee as an esport. And try to pivot that and create this this positive movement that can then generate sales for them, if it’s an opportunity that they decide to embrace. Now, that’s a little bit of a hard sell, given that, that sales pitch has been around for a long time, and Nintendo hasn’t taken us up on it. But given the covid 19 pandemic and the opportunity that this provides for online gaming to really jump up a level, it should be a fantastic opportunity for Nintendo if they would take it. Now if you decide to go the legal route you need based on your relationship to Nintendo and based on the nature of these communications, to try to make a judgment call on how likely it is that they would take action if you move forward anyway. And if they do, you need to crowdsource opinions and try to find the right attorney to take this on because it will be a battle.

Imad Khan  19:44

And with that, Connor, thank you so much for jumping on.

Connor Richards  19:46

Absolutely. Thanks for having me.

Imad Khan  19:49

And that was FTW with Imad Khan. If you like the show, please rate subscribe and share. Full transcripts of the show as well as links to our Patreon can be found at ftwimad.com. To follow Connor and keep up to date. Around esports and law follow him @Xzibitatlaw. That’s X-Z-I-B-I-T at law. to follow me in my writing over at the New York Times, the Washington Post and elsewhere find me at Imad on Twitter. And Ron Lyons is our audio producer. With that. We’ll catch you guys next week.

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