Your Console, Your Cartridge, You Choose? Nintendo Faces A Challenge

If you read our articles, you’ll notice that we will usually feature images related to the subjects we talk about. If they came from another source and they’re not CC-licensed or similar then they are the property of someone else but we are using them under a doctrine known as fair use. Excerpts of copyrighted material may be used under fair use for the purposes of such things as journalistic reporting, so for example we can use a copyrighted picture of Captain America were we to write about Marvel superheroes. Some content owners still try to stop this, and it’s one of them that [Linus Tech Tips] has in their sights as they have published a guide to running Nintendo Switch games on a Steam Deck without they believe giving any justifiable cause for the notoriously litigious game giant to take action. It’s full of carefully blurred Nintendo IP, and there is no coverage of pirate software downloads.

On one hand it’s about a heavy-handed console developer taking down small online content producers, but there’s another angle which is far more relevant to the hardware community who read Hackaday. It also has application in the field of software emulation, because while the console manufacturer would prefer to stop all but their own unmodified hardware running a game there should be nothing to stop a legally owned piece of software or hardware being run in any way its owner chooses. This is the central thesis explored at the end of the video, and the gimmick of trying to draw Nintendo into the open on the matter is their way of bringing publicity to it.

Even though [Linus Tech Tips] is probably one of the most viewed technology YouTube channels, it’s clear that Nintendo will have the deeper pockets should they choose to rise to the bait. So we’re sure their lawyers are all over this as we write, but we’d be interested to see whether the claims made in the video are enough to see it stay up. It would be nice to think that it might cause Nintendo to reconsider some of their policies, but we’re not holding our breath.

Our header image is definitely not owned by Nintendo, it’s from Blogtrepreneur, CC BY 2.0.

30 thoughts on “Your Console, Your Cartridge, You Choose? Nintendo Faces A Challenge

  1. I read “Nintendo Switch games on a Steam Deck” and instantly knew this probably had almost nothing to do with intellectual property and more to do with Nintendo losing handheld console sales to Steam.

    1. They don’t exactly help themselves. Try buying every Zelda game brand new from Nintendo or a distributor. Now try buying every Final Fantasy game. The latter is significantly easier.

      Why this is I do not know, somehow Nintendo must benefit from *not* selling games. Maybe Fear Of Missing Out increases launch sales for new games but then how many people bought Final Fantasy 6 on its reputation yet weren’t able or even alive to buy it on release?

      1. It’s because Nintendo seems to still seems to live by the “Disney Vault” way of business that almost no other company, including Disney, still follows.

        Once upon a time we used to only get Disney movies released for a limited time while we were threatened with “act fast before it goes back in the vault”, and we wouldn’t know how long it would be till we saw them again. It was a tactic to drive a surge of sales for the movies while also maintaining some arbitrary form of control of how many of them were out of the world; a world quickly becoming accustomed to being able to rent, trade and resell (and bootleg) these things: all things Nintendo hates we can do with their games to this day.

        I mean, the Final Fantasy example is even funny because SquareEnix used to do a similar thing; every console/handheld cycle was a new chance to rerelease a title and resell their games to use for the 2nd or 3rd time, just to milk the nostolgia. But even they’ve caved to modern practices.

        Now Disney and other media companies are curating their own libraries through services where there’s generally no limit to how much stuff they’re cataloging on them for a monthly price that people gladly pay for the access. In the game industry, most companies are content with having every game available on every platform, while enticing us with crazy remakes to drive even more sales (looking at you Final Fantasy 7 Remake), with most of these appearing either on streaming/download services, like GamePass or the new PS+, for a small fee, or a one time purchase on places like Steam that can be carried parcticlly anywhere. Hell, even Square Enix has ported many Final Fantasy titles to mobile, with no stop gaps to be able to limit how many new phone generations a game can be played on.

        You’d think once Nintendo started to do their own virtual console emulation on the Switch, and release their games in their own strictly controlled environment for a ridiculously low yearly cost, they would have let up on their usual overzealous litigation practices, but they’ve only seemed to have gotten worse.

        But it shows a few things. Like how little Nintendo may seem to be learning. Or how paranoid they really seem to be. Even how much they’re stuck in the past while constantly innovating towards the future. Through trying to control all the cards (no pun on Nintendo’s original role in the world), they’re showing all of their cards. The brand may be strong, but there’s a thin line between strength and alienating their fans that they ride while maintaining that strength, and it proves both how loyal we are as fans and how much luck Nintendo has been riding as a company for a very long time.

        1. You’re totally correct. Nintendo is basically riding in nostaugia. They make good games and good hardware but that backward legal behaviour is killing the company. Don’t know how much Nintendo will ride on nonstaugia since we are starting a new generation of mobile gamers playing fortnite and minecraft that don’t know who nintendo is or what they do. And the modern adult who keeps nintendo lights on… I grew up with a PS1 and have zero nostaugia for nintendo so all their products are totally irrelevant for me. I know them, played some of them as adult but don’t hold any nostaugia, and for me nintendo products have potential but due to the totally locked down environment I dont touch them, imagine a new generation who doesn’t even know who is Maior or who is Link.

          1. Nintendo’s resistance to new technology is hardly new. Sony PlayStation EXISTS because of Nintendo’s resistance to evolution. They were determined to keep using limited cartridges for their consoles when game developers were wanting to build bigger games that required more storage (which is why Final Fantasy migrated away from Nintendo to PlayStation).

            Final Fantasy 7 was a 3 cd game, but it would have required a ridiculous amount of cartridges to hold the same amount of content with no way to migrate the saves over because games were saved directly on the cartridge instead of using memory cards.

            I know all this because I lived through it. I hated the migration, until I saw why it was necessary.

            Nintendo just wants technology to come to a standstill so they can milk what they have forever, and will always resist any sort of progress because R&D costs money.

      2. Even without the access issue, games on the switch are just so expensive that it’s rarely worth buying them. If I was in the market for a new handheld I would 100% go for the Steam item, even if I wasn’t interested in running other distros on it.

        1. Very much this Nintendo is way too expensive, even games and dlc that are effectively EOL downloads as their older consoles go away are sold at full modern high end prices – if they were dealing with the logistics of shipping niche or obsolete game disk/cart globally being a little pricey I can understand, but a download has almost no cost to provide and yet they expect you to pay full brand new price on them now..

          So I have been buying the consoles (usually second hand) only if there is an exclusive game I really feel I must play… Which is getting rather rare now, there are fewer exclusives in general and of the Big N’s collection few really are anything special, even Zelda is kinda dead – Zelda BOTW for me was just a slightly Zelda twist on the almost ubiquitous bland open world game, not bad but definitely not that special blend of clever maze, puzzle and exploration that the others have been.

  2. It really isn’t a case of more expensive litigants, it is a matter of the best application of a legal argument. My Pascal prof was not a great lawyer, but won most of his cases due to better verbose citation of arcane decisions favoring his point.

    1. We try to! Or in the caption for the image.

      Sometimes, it’s also obvious from the context in the article what the source for the image would be — i.e. we’re discussing a book and use an image from it in the same paragraph. AFAIK, that’s also OK.

    1. Except its not preemptive, as the big N has already thrown its weight around on this subject (and many others with similarly thin/lacking reasoning), they just haven’t had to try it on a really big media enterprise that LMG has become – stamping on the little guys for no valid reason is easy to get away with, but it gets harder to stamp on the bigger fish, even more so when that bigger fish puts out such a sarcastically bend over backwards to be compliant so there is no possible justification…

      Obviously its a good controversy to cover for LTT, bound to get extra clicks for it, and they really lean into it, its not like they hide this fact…

  3. I always thought that Nintendo could take them down because there’s no such thing as “fair use” under Japanese copyright law?

    The DBZ Abridged channel discussed it when they had a big problem with takedowns because they used some Japan-only (HD/wide screen) content instead of American relicensed stuff.

  4. Question: when it comes to games, we are talking about property, or just a license to use?

    Why I’m asking – In the past, I worked at a big software company that didn’t really “sold” their product; instead, you are granted a license to use and you would *never* be considered the owner of it – even if you downloaded to and/or installed it in your own machine. This left this company in such a position that they could state (in their agreement) that you shouldn’t use that software for illegal activities, for instance. Sort of “if you use it to control your drug dealing website, your license will be cancelled”, or “if I don’t like what you do, I’ll stop you from using *my* solution, because it is *mine* and I’m just allowing you you use it under my terms and conditions”.

    How does it work for games? Of course, I shouldn’t buy a game and then make money renting it – it would go against IP and hurt some company profits; but is it *my* property? Is it a “licensed product”, or a “license to use a product”?

    No, I had never read the terms and conditions for a game… lol…

    1. Well… I’m not a lawyer and this is not legal advice but… I’m curious and I know a bit or two about gaming and software copyright law do to what I do for living, programing hahaha.

      Like any tv show, movie or music, when you buy a game you also is just buying the license to play that game the way the developer intended. First, there’s a distinction between breaking the TOS and breaking the law. Some things are described in the TOS like whether or not you’re allowed to run that software in a different machine (emulation), whether or not mods are allowed and so on. If you do any of those stuff it’s not illegal, you’re just breaking the TOS and the company can revoke your license, if you where renting a service it would make it unavailable but since you’re bought a license you loose the support. Although it’s not explicitly dictated by the law is what we have precedent for, all previous cases of breakingnm the TOS of something you’ve bought by modding or emulation is ground for end of support but nothing else.

      But there are some things that are covered under DMCA, copyright, and that it’s a different beast all together. The line between the license and the TOS is thin bc you cannot put anything you like in the license but you can in the TOS. It’s so thin that they are normally together in the same document. And the license dictates what you can or cannot do with that content and breaking it it’s against the law and you can be prossecuted for it. For instance, public reproduction of a content outside fair use is against the law…

      But now let’s go on how the world actually works. Videogame it’s pretty much like music or video, it’s hold by the same standards as it’s software, like Windows. But the videogame industry is nothing like the music and the video company, that’s bc somehow it’s more intellectually advanced, in theory sharing a picture of your Minecraft world on Instagram or making a stream of the new call of duty would be right into copyright infringement but… The game companies realized that by allowing this would make the game more famous and thus making them more money, so their license agreements are far more relaxed in that way, most companies will literally allow you to stream their game, make mods, make videos about it and so on.

      The problem? Nintendo is stuck in the past and they try to do things the hard way, not allowing any of this. The problem is not legal per say, it’s that this model doesn’t fly under modern gamer philosophy so they just get a bad rep for stupid behavior that’s just hurting their business bc moat people don’t know the technicalities of the law and think they are allowed to stream, make mods and so on, but in reality they aren’t. And more people not liking that behavior (me included) leaves to more people trying to go in the law (like Linus did) or off the radar (when people start pirating Nintendo games) to circumvent the copyright law just to see Nintendo dance, sometimes not even bc it’s a good idea but just bc they can… In resume, Nintendo actions make the exact opposite they’re tryjng to do. Bc as you can see nobody is talking about the stran deck being able to play PS2 or Xbox games. They are talking about Nintendo games on the deck…

    2. That’s actually exactly how it works with movies and games as well. It’s why you can’t make copies and redistribute it.

      When you buy a game or movie, you don’t actually buy the game or movie, you just buy a license to be allowed to use it and then receive a copy of the video or software as a part of it.

      While movies don’t really care about what medium you watch it as long as you aren’t sending it out to the high seas, console game license agreements include a clause that says that you can only use the game on the hardware it was intended.

      In practice it’s not really something they can easily defend, though.

      1. The real deal about emulation is kinda murky bc all precedence we have so far is in favor of emulation, similar to reverse engineering. So technically its legal due to precedence, but there’s no actual law to back it up. Then you get in the gray area where nobody would sue you bc they know that everybody who tried in the past lost unless they have some base like your emulator use part of proprietary code like bios or encryption keys protected by DMCA. Thats why modern emulators requires you to supply your own BIOS / Keys.

    3. Wasn’t there a case in Germany or something that Nintendo lost because of pre order digital downloads, I can’t remember the details but your post reminded me of it.

    4. For games and consoles it works the same way since the first emulator cases. Sony was the first to move from selling the game to selling the license for use of the game followed by Nintendo and lastly Microsoft. All games sold before 2001 are purchase of full code and therefore as long as you owned the actual game it is considered fair use, after 2001 you need to check the agreement first. IE you can emulate ff8 if you purchased the original copy, however if you purchased any remake copy you don’t have the right to emulate the game under that purchase.

      1. How would this apply to portable console releases? It follows the same system and I’ve read my fair share of manuals and remember nothing legal other than copyright.

    5. Games are usually sold “as a license”, as you said, but it depends on the platform. Steam for instance is working like that, but iirc that’s not the case with GOG/Itch games. Then again, developers can probably add extra layers to the definition, independently from platforms.

      1. Why does Steam then have “Steam Subscriber Agreement” when “Purchasing” games?
        It’s not even a license that they “sell”, it’s a subscription which is legally very different beast, licenses can be resold especially under EU laws, subscriptions – not.

  5. Something i found funny is that STM32’s HAL license agreement states that you can only use that code on STM32 devices. So if you run that code on a GD32 for instance, you would be violating the license. Since Arduino is built on top of the HAL, you also are not allowed to run arduino on the GD32. So anyone who has used those counterfeit blue pills with arduino or STM32CubeMX have broken that license agreement.

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